The AP vs. The Blogosphere

Posted by Mike Merritt in Technology, Websites on

Man oh man, there’s a bunch of things I want to talk about this week, but first one of the foremost issues in my mind as of this point.

Unless you’ve been living under a rock (and in this case you may have been), the Associated Press wants to charge people for using excerpts of their content.

The Associated Press, having already announced its intention to harass bloggers who publish snippets as short as 39 words from AP stories, has now published a web form through which intimidated parties can give the AP money in return for “permission” to publish as few as five words.

At the heart of the debate is the age old concept of fair use.  Copyright law in the U.S. protects fair use.  Basically it says that someone can’t go suing you just for using small portions of their works.  For example, you can claim all rights reserved on everything you write, but people still have the right quote small excerpts of that work.  Fair use law is really murky as there are not set concrete limits as to what exactly can be quoted or copied.

We’ve seen it year after year.  Corporations go after big time and small time people with claims of copyright infringement on videos, audio recordings, or copying of text.  Viacom has been especially persistent lately, sending many DCMA notices to places like YouTube.

The current standoff is between the Associated Press and pretty much the entire blogosphere.  The AP became embroiled in controversy last week when they started going after a small time blog called The Drudge Retort (quite obviously a counter to The Drudge Report) for linking to its articles and using excerpts as short as 38 words.

Needless to say, the blogosphere is up in arms over these new draconian rules.  It only got worse once it was revealed that rather sending DCMA notices to the hosts of everyone who uses their content without permission, they made up a pricing plan to charge people by how many words they’re using.  For example, 5 to 25 words will cost $12.50, and it goes up to 251 words, which costs $100.

The blogger case is that excerpting and linking to the source is the way of the new media, compared to what the AP would like us to do, merely summarize the article.  Yet, clearly, the fair use part of the U.S. copyright law doesn’t say that.  Straight from the horse’s mouth:

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

  1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  2. the nature of the copyrighted work;
  3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  4. the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

The question now is which sites are following fair use and which are not.  I think it’s pretty clear that most blog sites are following fair use well.  In addition to quoting and linking the AP, they’re giving either giving additional original research/reporting, or commentary.  That is clearly proper fair use.  Here the AP is dead wrong.

However, I’m wondering about whether some of these link aggregator sites, like the Drudge Retort, Digg, Reddit, and so on, are following fair use.  These sites definitely are not posting full AP articles, but rarely are they also adding their own original commentary or reporting to the articles.  One could argue that the comments section of the Digg or Reddit or Retort/Report is the commentary, but I’m not sure how well that would hold up in court.

Who knows, though, it could be ruled as fair.  In the end, it’s probably going to be up to the Supreme Court to rule on this issue, because I don’t think they ever have.  The Copyright Law of 1975 simply didn’t predict link aggregators.  By the way, I’m am in support of the way sites like Digg, Reddit, and Drudge Retort run.

Some bloggers have made light of the issue.  Conservative blogger Michelle Malkin, for instance, has calculated how much the AP owes her for using content from her site, using the AP’s own pricing scheme.  I agree with her that it’s a little ironic that the AP is all in a huff about bloggers excerpting their content, all the while, they have excerpted bloggers themselves.

Today, it was reported that the AP and an organization called the Media Bloggers Association have plans to meet to discuss a solution for this issue.  Some are understandably upset at this development, given that the MBA hasn’t been around for that long.  People don’t know them well, and are angry that some organization that they have no say in is going behind their backs to make some deal with the AP that may or may not be beneficial to them.

Personally, I think it’s a lot better for the MBA to go ahead and do this than to have nothing happen.  Getting all whiny and boycotting the AP won’t lead to much.  Like those “don’t buy gas” boycotts we keep seeing, any AP boycott will be largely symbolic.  The only way it’d work is if a significant number of old media organizations join in, and that’s not likely.

Here is an interview with MBA President Robert Cox, where he explains his reasoning for meeting with the AP.  They’re going to work out the Retort debacle first, and hopefully get a larger agenda out of the way.  It’s be great if the AP backs off somewhat, but if they don’t, or don’t as much as most bloggers would like, the MBA can’t expect every blogger to back them.  It’s like that Blogger’s Code Tim O’Reilly wrote up a year ago.  Not everyone’s going to follow it.

Whatever the AP ends up conceding or not conceding, it bloggers don’t like it, they will fight.  Some will, anyway.  Markos Moulitsas over at DailyKos has committed to doing just that:

Lots of blogs are calling for boycotts of AP content. Not me. I’m going to keep using it. I will copy and paste as many words as I feel necessary to make my points and that I feel are within bounds of copyright law (and remember, I’ve got a JD and specialized in media law, so I know the rules pretty well). And I will keep doing so if I get an AP takedown notice (which I will make a big public show of ignoring). And then, either the AP — an organization famous for taking its members work without credit — will either back down and shut the hell up, or we’ll have a judge resolve the easiest question of law in the history of copyright jurisprudence.

The AP doesn’t get to negotiate copyright law. But now, perhaps, they’ll threaten someone who can afford to fight back, instead of cowardly going after small bloggers.

This ought to be an interesting week in the world of blogging. I look forward to following it. In the mean time, if you wish to quote any or all of this or any other Dymersion article, feel free.  I use a Creative Commons license that allows anyone to share, distribute, perform, or make derivatives of my work, so long as you attribute me for the work, and don’t use it for commercial purposes.

That means I’m looking at you, Associated Press.  Well, except for fair use quoting, of course.

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